The Unusual Story of the Pocket Veto Case, 1926–1929 by Jonathan Lurie

Abstract

This meticulously researched and engaging book unravels the complex skein of cases in which the U.S. Supreme Court and lower federal courts have interpreted the scope of the so-called “pocket veto,” which permits the president to disapprove a bill by not signing it or by returning it when Congress is not in session. Lurie uses these cases as a prism through which to explore “ongoing legal issues concerning separation of powers—a never-ending source of constitutional friction” (151–152). The book’s title is unduly modest because nearly one-third of the book explores cases between 1936 and 1987.Lurie focuses on Okanogan Tribe et al. v. United States (1929), in which the Court held that a bill does not become law if a president is unable to return it to Congress because Congress is not in session, even if a Congress has not permanently adjourned. Although the Court’s decision addressed only the pocket-veto issue, the case itself involved claims against the federal government for more than $13 million by six indigenous tribes in the Northwest. After Congress voted by acclamation in 1926 to authorize the tribes to sue the government in the U.S. Court of Claims, the ever-frugal President Coolidge exercised his pocket veto to kill the legislation. The attorney for the tribes, William S. Lewis, contended that the bill had become law because there had been no final adjournment of Congress. Lewis insisted that it was unfair to allow the president to veto legislation in a way that prevented Congress from overturning his veto, an argument echoed in an amicus brief by Rep. Hatton W. Sumners, the powerful chair of the House Judiciary Committee. In his decision for the Court, Chief Justice Charles Evans Hughes relied heavily upon precedent; presidents since James Madison in 1812 had killed legislation by refusing to sign it during intra-session recesses. One of Lurie’s themes is the broader question of the extent to which courts should elevate precedent at the relative expense of an analysis of the text and structure of the Constitution and consideration of public policy.Lurie also provides a detailed account of a later decision, Wright v. United States (1938), in which the Supreme Court modified Okanogan Tribe by holding that the president cannot kill a bill during a congressional recess if the house in which the bill originated has appointed an officer to receive his veto message. He carries the story forward into the 1970s and 1980s, when lower-court decisions further delineated the circumstances under which presidents could issue pocket vetoes.In telling his story, Lurie deftly leads readers through mazes of primary sources—including committee hearings, motions before various courts, hearings, re-hearings, briefs, memoranda, and judicial decisions—which culminated in various judicial decisions, particularly Okanogan Tribe. Even though the Court never adjudicated the claims of the tribes, the book provides an interesting and extended discussion of their grievances and laments the irony that these grievances ultimately were never addressed, much less remedied, in the morass of litigation about the pocket veto.To place the pocket veto cases in context, Lurie also provides a comprehensive history, almost a book within a book, about the creation of the Court of Claims, which was designed to replace haphazard congressional review of claims against the federal government. Lurie explores the Court’s formation in 1855 and the subsequent expansion of its jurisdiction, including 1881 legislation permitting it to adjudicate claims by indigenous tribes if Congress authorized such litigation.Lurie’s book is particularly important because Okanogan Tribe and other pocket veto cases have received virtually no other attention from scholars. This crisp, concise, and comprehensive book should become the standard authority for any historical study of the pocket veto. It also makes a significant contribution to the literature about the separation of powers.